Thursday, December 11, 2014

When Does Dementia Mean You No Longer Have the Right to Say Yes to Sexual Activity?

In August, I reported on criminal charges filed that month in Iowa, charging a husband with sexual abuse of his wife who was living in a nursing home. 

As a result of that post, I was invited by a reporter, who was working on an extended analysis of the case, to review certain information and records emerging from the case. Much of my own research is closely focused on issues both of capacity and protection.

The more one reads about the Iowa case, the sadder it seems.  Even though at first it seemed the husband, a state legislator, might be expected to have sophisticated legal knowledge of the implications of what it might mean for his wife to be diagnosed with dementia, it became pretty clear -- at least to me, reading from afar -- that the husband is a fairly simple guy: A farmer, high school education, part-time legislator who liked pig roasts and parades, and someone who cared deeply for his second wife, trying as hard as possible to see her as "just a little" impaired. 

I suspect that for many of us who have experiences with a loved one with dementia, there is a phase of denial, not just about the fact of dementia, but about the level of dementia. I remember one instance where a client always had her husband sign their joint tax returns, because even with Alzheimer's, he was "able" to sign his name clearly.   

Reading the statute used to charge the Iowa husband also gave me pause. Iowa Code Section 709 was the basis of the sexual abuse charges.  Sexual abuse in the third degree under Section 709.4 could be charged where a sex act "is done by force or against the will of the other person." That provision did not seem to apply.  Charges could also be brought where the act is between persons who are not cohabiting as husband and wife, "if any of the following" is true: "The other person is suffering from a mental defect or incapacity which precludes giving consent."

Section 709.1A of the Act defines "incapacitation" to include "mentally incapacitated" or "physically incapacitated" and neither quite seemed to apply.  Under Iowa law, "mentally incapacitated" means that a person is "temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance."  And "physically incapacitated" means that a person has a bodily impairment or handicap that substantially limits the person's ability to resist or flee."

So, how was the husband charged?  He was charged under Section 709.4 (2)(a) on the grounds that his wife, with whom he was not "cohabiting," suffered from a "mental defect" that precluded giving consent.

So that makes the "elder  law" issue fairly stark: Has his wife's diagnosis of dementia, especially advanced dementia, prevented her from giving legally effective "consent?"

Continue reading

December 11, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 10, 2014

Comparative Legal News on the CARE Act: A Report from Pennsylvania's AARP Family Caregiver Summit

Earlier this year, Kim Dayton reported in our Blog (here) about the new CARE Act, enacted in Oklahoma as a means to provide better transition from facility-based care to home care for individuals needing support.  The CARE Act is a nation-wide project sponsored by AARP and thus I was excited to be invited to participate in an AARP Pennsylvania Family Caregiver Summit, as part of the discussion about introduction and passage of a CARE Act in my state. 

The Summit was held yesterday with administrative agency heads, legislators and their staff invited to attend.  The turnout was probably a bit affected by the weather reports for the day.  (What happened to the predicted Nor'easter, anyway?  Not that I'm complaining about winter weather that proves to be milder than predicted!)  I found the event very interesting.  As so often happens, I ended up being more of a student than a teacher, even while serving as a panelist.

It was quickly clear that virtually everyone in the room had experience with or personal awareness of the challenges of serving as a family caregiver under stress.  The room was practically vibrating with stories about how tough it can be to know what to do when you confront the reality that a parent or other aging family member needs significant support.  The keynote speaker, Cate Barron, a vice president of the PennLive and Patriot-News media group and by her own admission a take-charge kind of gal, spoke with great candor and humor about the process of realizing that a "diagnosis" of what is wrong did not necessarily provide answers to her mother's need for assistance.  We are so pre-programmed to believe that if we can find the right diagnosis of the problem, there must be a "solution" worth pursuing.

The opening presentation by Glenn Fewkes from the AARP National office provided the latest statistics and graphics about aging in the U.S.  What I found especially interesting were his graphics about Long-Term Services and Supports (LTSS) for individuals with caregiving needs.  It turns out Pennsylvania ranks near the bottom (42nd, according to the most recent statistics) on a national scorecard. evaluating LTSS for affordability and access.  That means the state with the fourth "oldest" population has some real challenges ahead.

That is where AARP's CARE Act project comes into play as a first step to improve supports for individuals needing care.  As we reported earlier, CARE is an acronym for "Caregiver Advise, Record and Enable" and AARP's model has straight-forward objectives.  To me, a key goal in adopting the model CARE Act is to create smoother transitions.  This can be facilitated  by making sure that hospitals or rehab facilities have clear information about any designated "caregiver," that they give notifice of discharge at least 4 hours in advance,  and that they offer practical instruction on any medical tasks that will need to be performed in the home.  For example, under the model CARE Act, the instruction shall include:

  • a live demonstration of needed "after-care tasks"
  • an opportunity for caregiver and patient to ask questions
  • answers to the caregiver and patient questions "provided in a culturally competent manner and in accordance with the hospital's requirements to provide language access services under state and federal law."

My own research has shown that family members often cite "access to accurate information" as one of the most important first needs for families responding to caregiving crises.  The CARE Act is clearly intended to respond to a critical first window of need -- hospital discharge --  by requiring facilities to give useful information and relevant instruction.

During the Family Caregiver Summit, there were a lot of good questions about the CARE Act, and it was great to have Pennsylvania State Representative Tim Hennessey on the panel. In his role as majority chair of the House Aging and Older Adult Services Committee, it is likely he will be able to provide early analysis and support for the CARE Act in Pennsylvania. 

As part of my own preparation for the Summit, I took a closer look at Oklahoma's result with the CARE Act.   Title 63 Okla. St. Ann. Sections 3113- 3117 (the statutory provisions created by the April 2014 passage of Senate Bill 1536) became effective on November 1, 2014.  The law requires that  hospitals "provide each patient or patient's legal guardian with an opportunity to designate one lay caregiver" following admission, and to record the designated caregiver and the caregiver's contact information in the patient's medical record.  Such a choice then triggers the hospital to "request the written consent" of the patient or guardian to release medical information to the patient." Only if the patient both designates a lay caregiver AND gives "written" consent is the hospital then obligated to do anything further with respect to discharge planning with the caregiver.

But what happens in Oklahoma when the written consent to share information with the designated caregiver is given? 

Continue reading

December 10, 2014 in Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2014

Is "Ambivalence" Sometimes a Component of Elder Financial Abuse?

I've written often in our Blog, including here and here, about our growing awareness and national concern about the issue of financial exploitation of older persons.  In brainstorming a bit with another attorney about a thorny case -- and trying to decide where a parent/child relationship went wrong --  I was reminded of the work of Professor Karen Hooker, PhD at Oregon State University's School of Social and Behavioral Sciences.  Karen-hooker-webA major focus of Professor Hooker's work is the influence of "personality" in aging across the lifespan.  She has examined spousal caregivers for persons with dementia, looking to see how the individual's view of self and the relationship affects "success," including successful caregiving.  Another part of her work has examined closely the issue of "ambivalence" in family relationships.

For example, in Dr. Hooker's research, her team used qualitative study methods to examine older parent/adult child relationships.  One of the major themes emerging when parents (each aged 67+) talked about their children was awareness that their children were "busy," and thus there were often ambivalent feelings of need and dissatisfaction about the parent's interactions with their children.  The study revealed feelings both of resentment and pride about their busiest children.

That has led me to think that "ambivalence" may also be a component of voluntary "principal and agent" relationships, where the adult children are asked by the parent to serve as an agent under a power of attorney, for example.  But as the adult child exercises more control over financial matters, might that parent also begin to have second thoughts, thoughts that are not acted on until "too late."  The children believe they had authority to "pay themselves" for their roles in handling matters for their aging parent; the parent initially agrees, or at least does not object, and only later, after the money is gone, asserts some "agreement" about the financial matters, arguing there was an "understanding," even if never express at the outset?  There is room for more research here, yes?

For more on Professor Hooker's interesting work in personality and life-span issues, read this great interview, with links to her publications and biography here.   

December 5, 2014 in Dementia/Alzheimer’s, Health Care/Long Term Care, Science, Statistics | Permalink | Comments (0) | TrackBack (0)

Thursday, December 4, 2014

Canada: Alzheimer's health club offering new type of care for seniors

Via the Toronto Star:

Ever since she was a teenager, Ashley Kwong knew she wanted to open her own seniors’ home. Now, almost two decades later, her dream is finally becoming a reality.  Kwong is launching Memory & Company next spring — and she’s touting the Markham facility as Canada’s first private Alzheimer’s program.  Kwong says Memory & Company will have a spalike feel, with well-lit rooms, secured outdoor spaces and programming such as music therapy, gardening and yoga. There will be a five-to-one staffing ratio and an on-site nurse.  Costs, which range from $100 per day for basic care to $150 for those with more advanced Alzheimer’s, are on a par with many long-term care facilities and retirement homes. While more expensive than many day programs, Memory & Company will offer a different type of experience, catered specifically to the needs of people with Alzheimer’s and dementia, Kwong says.  Clients will be free to roam the health club’s 11,000-square-foot space with a circular design to decrease their dementia-related agitation while wandering through the rooms. Clients will also have access to a salon, gym, dance studio and hydrotherapy spa, alongside outside services like massages and physiotherapy.  “We’re also using iPad technology to provide more individualized care, instead of planning the whole program for the month and not caring what people are in the building,” Kwong says. “It’s a different approach than the assembly style of day programs right now.”

Read more at the Toronto Star.

December 4, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Health Care/Long Term Care, International | Permalink | TrackBack (0)

Wednesday, December 3, 2014

Canada: New online program aims to help reduce financial abuse of seniors through education and awareness

Launch of Financial Abuse of Older Adults: Recognize, Review and Respond program marks end of Financial Literacy Month

In honour of November being Financial Literacy Month, Credit Union Central of Canada (CUCC) has partnered with Credit Union Central of Manitoba (CUCM) and Prevent Elder Abuse Manitoba (PEAM) – in collaboration with the Financial Consumer Agency of Canada – to launch a new online course: Financial Abuse of Older Adults: Recognize, Review and Respond.  The purpose of this course is to help educate credit union staff about financial elder abuse and provide them with key information, including: how to identify incidences of elder abuse; how to mitigate the risks; community resources available; as well as the legal and ethical responsibilities of both the financial institution and the senior involved.  Upon completion of the course, credit union employees will have the opportunity to share their knowledge with members of the community – especially with Canadian seniors –, to help them understand more about elder abuse and how to prevent it happening to them.  Minister of State (Seniors), the Honourable Alice Wong; Minister of Healthy Living and Seniors (Manitoba), the Honourable Deanne Crothers; Lawrence Toet, MP (Elmwood-Transcona); Jane Rooney, Financial Literacy Leader; Martha Durdin, President and CEO of Credit Union Central of Canada, and Ted Richert, Vice President, Credit Union Central of Manitoba will make remarks.  The program was written and developed by Tamlo International Inc. and will be distributed exclusively by CUSOURCE Credit Union Knowledge Network, a wholly owned subsidiary of Credit Union Central of Canada that provides learning and development solutions to the Canadian credit union system.

Source:  Canada News Wire

December 3, 2014 in Elder Abuse/Guardianship/Conservatorship, International, Other, Programs/CLEs | Permalink | TrackBack (0)

Tuesday, December 2, 2014

Expert calls for legal reform on elder abuse

Via Australian Aging Agenda

Australia’s criminal laws must be reviewed in light of the low rate of prosecutions for elder abuse, according to a leading expert who has also called for the various power of attorney and guardianship laws at state level to be re-examined.  Professor Wendy Lacey, Dean of Law at the University of South Australia told the Australian Association of Gerontology national conference on Wednesday that along with legislative reform, coroners needed to be educated about elder abuse and its prevalence.  While there were mandatory reporting obligations around suspected physical and sexual abuse under the Aged Care Act, these only covered seniors living in residential aged care, and did not protect the majority of older people who were not accessing federally-funded services, she said.Professor Lacey, who is a co-convenor of the Australian Research Network on Law and Ageing, was last year appointed to the SA Minister for Health’s Steering Committee which reviewed the state’s framework for responding to elder abuse.  She said that under the constitution, the Federal Parliament’s powers to address elder abuse were “virtually nil” with “almost no capacity to develop a comprehensive systemic framework.” Therefore, advocates needed to look the states, said Professor Lacey.  “We can seek the support of the Commonwealth around funding and doing a national review around the prevalence and types of elder abuse, but from a legal and constitutional perspective we have to look to our state governments for the answer,” she told the Adelaide audience.

Read more here.

December 2, 2014 in Elder Abuse/Guardianship/Conservatorship, International | Permalink | TrackBack (0)

Monday, December 1, 2014

Senior Discounts

Who amongst us have not heard of a senior discount? They are ubiquitous in some areas, such as movie tickets or dining out. Here is one program that allows the recipient of a senior discount to donate it to a charity. The NY Times ran a story about this program, Getting a Senior Discount? Here’s How to Give It Away, which allows the recipient of a discount to donate it.  The article tells the story of the Boomerang Giving Project which allowed senior moviegoers to pay full price for their movie tickets and to donate their senior discounts to a charity of their choosing.

More information about the Boomerang Giving Project is available on their website. According to the website, "BOOMERANG GIVING is a national movement of Baby Boomers who dare to imagine the impact we can make as a generation if Boomers with the means reinvest some or all of our senior discount savings back into our communities through charities we each choose ourselves..." The project was also the subject of a story on PBS.

The Boomerang Giving website provides some history on the project. Originating in Washington state, "seven community leaders from Bainbridge Island and Seattle Washington, all dedicated to bolstering future generations through support of nonprofit organizations" created the project  with the mission  "[t]o redefine Baby Boomers as the generation that gives back. By inventing multiple ways to give back, Boomerang Giving is committed to creating opportunities for the 3.5 million persons who turn 65 each year to increase their charitable giving and join others in supporting their communities."

Returning to the NY Times article, the story notes the upward trend in charitable giving and the benefits of doing so. The obvious, of course, is the help to the charity, but as well, the donor benefits

  • "A crucial conclusion from a study published last year in the International Journal of Happiness and Development ... concluded that people feel good when they make a charitable donation — especially through a friend, relative or social connection."
  • "Harvard researchers found in an experiment that donating to charity can increase physical strength. .. " and
  • "An increasingly popular way for retirees to stay active mentally and socially is to join a local giving circle."

The article also offers some advice on checking out a charity's legitimacy before committing to a financial contribution and basic charitable planning.

December 1, 2014 in Consumer Information, Current Affairs, Retirement | Permalink | Comments (0) | TrackBack (0)

2nd Annual National Voices of Medicare Summit and Senator Jay Rockefeller Lecture

March 20, 2015
​8:30 am – 5:00 pm

Kaiser Family Foundation
Barbara Jordan Conference Center
1330 G Street, NW
Washington, DC 20005

Space is limited!

The Center for Medicare Advocacy’s Second Annual National Voices of Medicare Summit will connect leading experts and advocates to discuss best practices, challenges and successes in efforts to improve health care, long-term services and supports, and quality of life for older people and people with disabilities. Interspersed with the voices and real stories of Medicare beneficiaries and families, this one-day event will provide valuable information, insights, and inspiration.

Join us as we celebrate 50 Years of Medicare and work together to protect its future!

More info.

December 1, 2014 in Medicare, Programs/CLEs | Permalink | TrackBack (0)

Oregon Bar Bulletin Addresses Cognitive Decline Issues for Lawyers

In the November 2014 issue of the Oregon State Bar Bulletin, an attorney-counselor at the Oregon Attorney Assistance Program, Douglas Querin, reports that he has had more calls over the past two to three years involving questions of age-related cognitive decline than in all the previous years he has worked in his position. 

One factor potentially contributing to an increase is the number of lawyers who may be staying in practice longer, as a result of the economic downturn's effect on their retirement savings.  In Oregon, more than a quarter of all lawyers are age 60 or over, and nearly half of the active members in the Oregon bar are age 50 or over.

"'The most heartbreaking situations are where a lawyer may have had a stellar reputation for 30 to 50 years of practicing, then changes with cognitive issues, in part because no one raises the problem, and he keeps practicing and gets into trouble, which raises the attention of the bar,' [Assistance Program Attorney Querin] says.  'Then you have a senior lawyer with a great reputation whose legacy ends up being under an ethical cloud.'

 

By the time such discussions take place, the impaired lawyer's reaction may be denial, because part of the cognitive changes may include the inability to recognize that a problem exists, says [Oregon neuropsychologist Michael R. Villaneuva]. 'An inability to know there are difficulties is part of the nature of what's happening to them.'"

In "Ready or Not: When Colleagues Experience Cognitive Decline,"  author Cliff Collins details signs and symptoms of potential cognitive impairment, drawing upon the ABA Senior Lawyer Assistance Committee's 2014 Working Paper on Cognitive Impairment and Cognitive Decline Worksheet. The article further suggests approaches to take with colleagues and urges members of the profession not to "ignore" any problems. 

A companion article in the issue further addresses "Ethical Implications of Aging - The Graying of the Profession," including specific guidance in the ABA Model Rules of Professional Conduct and relevant formal ethics opinions. 

"Thank you" to Dickinson Law Professor Laurel Terry for sharing her copy of the Oregon State Bar Bulletin.

December 1, 2014 in Cognitive Impairment, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Overcoming Distractions--Training the Aging Brain?

There are so many things vying for our attention, and many of us may find ourselves easily distracted (say for example, by shiny objects). I like to use the example of Dug the talking dog from the fabulous movie, Up. (Going off on a tangent, consider using this movie in your classes, it's great) But I digress...or perhaps I was distracted....

Kurzweil AI ran an article on November 26th, 2014 reporting on a study on how to train an "aging brain" to ignore distractions. Disruptive sounds help aging brain ignore distractions reports on a new study, the results of which are published in the journal, Neuron. The study, Adaptive Training Diminishes Distractibility in Aging across Species is available with subscription or by purchase here.  The abstract explains the study:

Aging is associated with deficits in the ability to ignore distractions, which has not yet been remediated by any neurotherapeutic approach. Here, in parallel auditory experiments with older rats and humans, we evaluated a targeted cognitive training approach that adaptively manipulated distractor challenge. Training resulted in enhanced discrimination abilities in the setting of irrelevant information in both species that was driven by selectively diminished distraction-related errors. Neural responses to distractors in auditory cortex were selectively reduced in both species, mimicking the behavioral effects. Sensory receptive fields in trained rats exhibited improved spectral and spatial selectivity. Frontal theta measures of top-down engagement with distractors were selectively restrained in trained humans. Finally, training gains generalized to group and individual level benefits in aspects of working memory and sustained attention. Thus, we demonstrate converging cross-species evidence for training-induced selective plasticity of distractor processing at multiple neural scales, benefitting distractor suppression and cognitive control.

Back to the Kurzweil AI article about the study. The Kurzweil story notes that "[d]istractibility (the inability to sustain focus on a goal due to attention to irrelevant stimuli) can have a negative effect on basic daily activities, and is a hallmark of the aging mind." The article notes the applicability of the research, including applications for individuals with autism or for "individuals struggling with a variety of distractions." The Kurzweil article  notes the two-fold results of the study, "highlighting the therapeutic potential of this type of brain training to improve our ability to focus with age, it also shows that even in the aged adult, the brain is responsive to learning-based approaches that can improve cognition."

I was  pondering the results of this study vis a vis individuals suspected of having diminished capacity.  I was wondering whether there is application of the training to those individuals who may have difficulty with some ADLS if due to distractability. Would this be a temporary or long term solution and an alternative to guardianship for some? 

December 1, 2014 in Cognitive Impairment, Dementia/Alzheimer’s | Permalink | Comments (0) | TrackBack (0)

Sunday, November 30, 2014

China has drafted its first-ever law on domestic violence

Via The Diplomat:

The Chinese government has proposed a draft law against domestic violence – the first such law for China. The draft, published by the State Council’s Legislative Affairs Office, is open for public comment until December 25. The law will cover all forms of domestic violence, including spousal abuse, child abuse, and elder abuse. A full English translation of the draft is available from China Law Translate.  Domestic violence, particularly spousal abuse, has gained more and more attention in China thanks to a number of high-profile cases. As Xinhua put it in an article on the new draft law, “Family violence has remained in the shadows for a long time in China, where the culture holds that family conflicts are embarrassing private matters. Only in recent years have the Chinese people begun to examine the issue.”  The All-China Women’s Federation issued a firm statement in support of the draft law. “Domestic violence is not a family dispute, rather, it is aggression against people’s rights and should be resolved with legal measures,” the statement said. In an effort to further change the way domestic violence is viewed, the draft law exhorts Chinese media outlets to shape public opinion on the issue.   Accordingly, the new law encourages and even requires social aid organizations, schools, and medical institutions to report cases of abuse to the authorities. Both social organizations and individuals should be empowered to “dissuade, prevent, and report physical and psychological abuse from within the victims’ family,” the law said.

Source/more:  The Diplomat

November 30, 2014 in Elder Abuse/Guardianship/Conservatorship, International | Permalink | TrackBack (0)

Justice Department Reaches $437,500 Agreement with City of Ocean Springs, MS to Resolve Disability Discrimination Lawsuit

The Justice Department announced a comprehensive settlement today, resolving a federal civil rights lawsuit against the City of Ocean Springs, Mississippi, for alleged violations of the Americans with Disabilities Act (ADA). Under the proposed consent decree, the City will pay $437,500 in damages to a psychiatric treatment facility that was discriminated against by the City. The decree also requires systemic reforms to the City's land use and zoning practices to eliminate barriers for providers of mental health services to people with disabilities and combat the stigma of mental illness. The complaint, also filed in federal court today, alleges that the City discriminated against Psycamore, LLC, an outpatient psychiatric treatment facility, when it denied a certificate of occupancy and a use permit because Psycamore treats patients with mental illness.

Read the settlement agreement.

November 30, 2014 in Discrimination, Federal Cases, Federal Statutes/Regulations, Housing | Permalink | TrackBack (0)

Saturday, November 29, 2014

Oregon Court Invalidates State's Attempt to Expand Medicaid Estate Recovery

On November 26, 2014, in Nay v. Department of Human Services, the Oregon Court of Appeals invalidated a 2008 attempt by the state to expand Medicaid estate recovery rules to reach assets conveyed prior to death by the Medicaid recipient to his or her spouse. 

The court's ruling analyzes the portion of federal statutory law that permits, but does not require, states to expand Medicaid estate recovery programs to cover "any other real or personal property and other assets in which the [deceased] individual had any legal title or interest at the time of death... including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement."  Analysis of this language, which was mirrored by Oregon statutory law, leads the court to conclude that some ownership interest at time death of the Medicaid recipient must be present to make the asset a valid target of Medicaid estate recovery:

"Therefore, we conclude that 'other arrangement' in the context of the definition of “estate” means that assets transferred from the deceased 'individual'—the Medicaid recipient—by operation of law on account of or occurring at the recipient's death are included in that definition. Thus, the 'including' clause in the federal permissive definition of 'estate' incorporates nonprobate assets that are transferred from the Medicaid recipient to a third party by operation of law or other mechanism, but in which the deceased Medicaid recipient retained legal title or 'any' interest at the time of his or her death."
The appellate court then analyzes property law principles and elective share rules in Oregon, concluding that the state rulemaking attempt to reach pre-death interspousal transfers is not within the scope of the federal (or state) authorization:
 
"By including the 'interspousal transfer' text in the pool of assets from which the state can recover from the surviving spouse's estate, the rule includes assets that necessarily were transferred before the recipient's death. Because we have concluded that such predeath transfers are antithetical to the definition of estate as provided by federal and state law (requiring that the recipient have an interest in the property at the time of his or her death), we conclude that DHS's amendments of OAR 461–135–0835(1)(e)(B)(iii) relating to interspousal transfers exceeded its statutory authority granted by ORS 416.350 and 42 USC section 1396p, and we hold those provisions invalid."
The petitioner in this case, Tim Nay, is a Portland, Oregon attorney and former president of NAELA. By ruling in favor of the petitioner on the scope of authority for rule making issue, the appellate court found it unnecessary to address the petitioner's alternative argument on constitutionality of the rule

November 29, 2014 in Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Friday, November 28, 2014

Maryland Court Affirms Criminal Conviction re Daughter's Theft From Father's Joint Account

In Wagner v. State of Maryland, decided October 30, 2014, the Court of Special Appeals of Maryland affirmed the conviction of a daughter on charges of theft and misappropriation as a fiduciary, arising from her withdrawal of funds from her father's bank account which she used for her own purposes.  The daughter had been added as a "joint owner" on the account by her 80+ year old father following the death of his wife.   

The issue as framed on appeal was whether a person can be guilty of theft from a joint account on which that person is named as a joint owner.  

The amount in controversy was more than $120,000 withdrawn by the daughter over 3 years. The appellate court concluded that "even though [the daughter] was named as a 'joint owner' in the parties' agreement with the bank, and not a convenience person, it does not determine conclusively that [she] was an [owner] for the purpose of the criminal statute." 

Several key facts supporting the conviction are described in the decision, including:

  • Testimony by the father at trial that the only reason he added his daughter's name to the account was to permit her to get money for him, if he was unable to get it for himself.
  • The father retained control over the checkbook for the account.
  • Evidence that thousands of dollars were withdrawn from the father's account by the daughter using a cash card, which the father said he was unaware existed.
  • The daughter had failed to make payments on a $85k mortgage taken out by her father on his home, which the father testified was a loan to his daughter to help her business, and not a gift as the daughter claimed. Notice of foreclosure on the home was apparently what tipped the father to ask questions about his finances.

Maryland has not, apparently, adopted the Uniform Multiple Person Accounts Act, (UMPAA, first approved 1989) which is intended to clarify the rights of depositors and other parties in jointly titled bank accounts.

Continue reading

November 28, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, November 27, 2014

The "Aging" Art of Communication - A Holiday Topic?

Recently I have encountered several thoughtful articles about the language we use, and the approaches taken, when talking with older persons.  This seems to be an especially appropriate topic for the holiday season, when families often come together, sometimes from great distances. Whether we are talking with clients or family members, some of the same dynamics may be in play, especially when the question is about planning for the future.

From the ABA Commission on Law and Aging's Bifocal publication, comes David Solie's "The Wrong Signals: Shutting Down the Planning Conversation Before It Starts."  He encourages us to "consider the psychological landscape of older clients -- it is a world embedded with two dominant agendas posing significant resistance to change. Together, these psychological currents create a deep inertia to disrupting the status quo."  He labels these barriers to change as:

  • Ambivalence and the "Righting Reflex," and
  • The Need for Control

He suggests approaches, including the use of open-ended questions, reflective listening, and making a conscious decision about what words to use.  For example, he suggests that when we start to discussion options, we explain more clearly that advance planning helps to "preserve choice" and avoids "loss of control."   

Another potential problem may arise from "Elderspeak," a label social scientists use to refer to a tendency to use "patronizing" tones or words when speaking to anyone who is older.  One recent article in McKnight's News made me chuckle, as it points to the well-meaning but potentially misguided use of words such as ""honey" by professionals when working with elders. 

My father, a federal judge for more than 30 years, at age 89 may have forgotten many things -- but he does not take kindly to being called "honey" by strangers.  He now has an entire assisted living campus, even a few of the other residents, calling him "Judge" or "Your Honor." I bet you might know a judge or two like that?  When it comes to control, I'm not sure who is teaching whom about  holding court.  

Here's to more humor in all of our holidays -- and more opportunities for effective communication -- both within the family and beyond.  Happy Thanksgiving!

November 27, 2014 in Cognitive Impairment, Ethical Issues, Housing, Retirement, Science | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 26, 2014

Interprofessional Educational Initiatives "Spreading Like Wildfire"

Dr. Peter Beurhaus from Vanderbuilt University uses a question and answer format with colleagues at his university to explain how Vanderbilt's Program in Interprofessional Learning (VPIL), established in 2010, has involved "challenges, successes and surprises" for participants. The dialogue, published in Health Affairs Blog, emphasizes key points, including:

  • "Initially, we thought only of nursing and medicine but the more we examined the clinical situation, the more we realized that other health care providers were integral. So we looked at adding pharmacy and then social work. The challenge was to identify the place in the curriculum where our health professions students and interprofessional education would best fit."
  • "The notion of having one program that would meet requirements for four very different professions was quite challenging."
  • "Faculty representing each of the four health professions had to become liaisons between VPIL and their home professional school. Their work included negotiating the alignment of the home school’s goals, objectives, competencies, credit requirements, etc. with the innovative vision of an IPE curriculum in order to eliminate the 'add on' effect for the program. They had to be creative when identifying where a VPIL experience could be substitutive and simultaneously nurture their own role as part of the interprofessional faculty team charged with creating a meaningful educational program that met IPE goals."
  • "We intentionally partnered with people who had the same level of commitment that we did, and were conscious not to let extraneous things get in the way."

For more, see "Spreading Like Wildfire: Interprofessional Education - The Vanderbilt Experience."

 Along a similar line of interprofessional programming, see the commentary on "Interprofessional Education for Future Physicians: Including Legal Competencies," by Amy T. Campbell and our long-time friend Marshall Kapp. 

Hat tip to Delaware health law attorney Jennifer Davis-Oliva for sending links to both of these commentaries. 

November 26, 2014 in Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

Thank a Caregiver

Ramping up into Thanksgiving celebration, thinking about the things for which we are thankful---how about adding caregivers to that list? Huffintong Post Third Metric ran a three-part series earlier this month on Unsung Heroes: The Face of American Caregiving. The Unsung Heroes Who Give Up Everything To Take Care Of A Sick Partner, the first installment in the series, focused on eleven extraordinary caregivers providing care to spouses/partners.  The second,  The Unsung Heroes Who Give Up Everything To Take Care Of A Sick Parent covers 10 family members providing care for their parents., 9 of whom are over the age of 50.  The final installment, The Unsung Heroes Who Give Up Everything To Take Care Of Multiple Loved Ones covers ten amazing individuals who have provided care for multiple generations.

Knowing the statistics on caregiving, a number of us will be called upon to provide the care. These folks will inspire you.  Happy Thanksgiving.

November 25, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Retirement | Permalink | Comments (0) | TrackBack (0)

Factors to Consider In Determining Whether to Preserve Elder's Interest in Primary Residence

New Jersey Elder Law Attorney Linda Ershow-Levenberg outlines factual and legal issues to consider in deciding how to handle the family residence in a recent article for Experience, the ABA publication for the Senior Lawyers Division.  She warns that the "real trick is balancing [the clients'] financial security against the hopes of their heirs."

She begins by urging lawyers to resist a simplistic inquiry or "one size fits all" approach to elder law planning, stressing that lawyers should consider the impact of a proposed real estate conveyance on:

  • the elder's right to remain in the home;
  • a Medicaid application for either at-home or institutional services;
  • the income taxes of both transferor and transferee;
  • the elder’s financial and physical ability to remain in the home;
  • the elder’s estate plan; and
  • present and future liens and mortgages.

She observes that frequently an elder's "plan" to divide property equally among children or other heirs conflicts with the way in which property is already titled, noting that sometimes the choice of  co-owners or death beneficiaries was intentional.  "As often as not, however, the elder simply did not understand that beneficiary designations such as 'POD' (pay on death) or 'ITF (in trust for) control the disposition of an asset despite contrary instructions in the will."  Additional complicated and conclusive presumptions may exist, arising from the form of title for real property, that also may conflict with a will, thus triggering expensive challenges that could have been avoided with more comprehensive understanding of the client's estate.   

The article appears to be written for non-specialist lawyers, who are often asked to do "simple" estate planning that, in the wrong hands, can result in anything-but-simple outcomes for the family. 

Here's the link for more on "Preserving the Primary Residence: The Minefield of Real Estate Transactions in Elder Law Planning."

The theme of this issue of Experience is "Real Estate Issues Affecting the Elderly," and the issue includes discussion of the pitfalls of reverse mortgages, income tax liability connected to foreclosures, and "unique" property rights issues for seniors in Western states, including water rights.

November 25, 2014 in Estates and Trusts, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2014

Senior Faculty?

I'm a senior faculty member at my law school. It doesn't seem like that long ago I was junior faculty and one day I realized I was now one of "them". I don't even recall being "middle management" but I must have been so, for a few years.  So first as an elder law prof and second as a senior faculty member,  I've been interested in a couple of articles published in the Chronicle of Higher Education.  The first article, The Forever Professors appeared in the Chronicle Review on November 14, 2014 in the Opinions and Ideas section.  The next, Ageism in Academe, appeared Novembere18, 2014 in the Chronicle's blog. 

There are a number of issued raised in this articles, and it appears there is a fair amount of interest, both with the Forever Professor piece and  The Ageism  post when you consider the number of comments posted to the two.  I'm sure we all cover aging and ageism in our classes and it engenders good discussions.

I wondered about whether to integrate in my classes the points made in these Chronicle articles (note, neither of these profs are law faculty-whether this is relevant or not). I am not going to summarize or comment on the two articles. I do encourage you to read them...and the comments.... and draw your own conclusions about the teaching points we can glean from them. Meanwhile, I'm going to ponder them further while I think about preparing for the next semester's classes.

November 24, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Proposed Changes to Attorney Disciplinary Rules Follow Recent Theft Reports

Several high profile incidents, such as those reported here in our Blog and here by the Philadelphia Inquirer, involving attorneys disciplined or convicted of theft of client funds, have triggered proposed changes in Pennsylvania's Rules of Professional Conduct for attorneys. The rule changes proposed by the Pennsylvania Supreme Court's Disciplinary Board include:

  • imposing restrictions on an attorney's brokering or offering of "investment products" connected to that lawyer's provision of legal services;
  • clarifying the type of financial records that attorneys would be required to maintain and report, regarding their handling of client funds and fiduciary accounts;
  • clarifying the obligation of attorneys to cooperate with investigations in a timely fashion;
  • clarifying the obligation of suspended, disbarred, or "inactive" attorneys to cease operations and to notify clients "promptly" of the change in their professional status. 

The Disciplinary Board called for comments on the proposed rule changes, noting that although individual claims against the Pennsylvania Lawyers Fund for Client Security are confidential, "Fund personnel can attest that from time to time, the  number of claims filed against a single attorney will be in double digits and the total compensable loss will amount to millions of dollars."  The comment window closed on November 3. 2014.

In recommending changes, the Disciplinary Board noted common threads running through many of the cases, including:

Continue reading

November 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)